Informe provisional - Informe núm. 356, Marzo 2010

Caso núm. 2727 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 29-JUN-09 - Cerrado

Allegations: The Venezuelan Workers’ Confederation (CTV) alleges: (1) that the Office of the Attorney General has brought charges of boycotting against six workers of the enterprise Petróleos de Venezuela SA (PDVSA) for staging protests to demand their labour rights; (2) that protests have been criminalized and legal proceedings initiated at various enterprises, and that union officials have been dismissed in connection with these protests; (3) the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre and of two union delegates in the Los Anaucos district in June 2009; (4) the contract killings of more than 200 workers and union officials in the construction sector; and (5) persistent refusal by the public authorities to bargain collectively in the health, oil, electricity and national university sectors, among others

1. 1630. The present complaint is contained in communications from the Venezuelan Workers’ Confederation (CTV) of 29 June and 4 November 2009.
2. 1631. The Government sent its observations in communications dated 20 October 2009 and 8 and 9 March 2010.
3. 1632. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1633. In its communications of 29 June and 4 November 2009, the CTV alleges that the Office of the Attorney General has brought charges against six workers (Mr Larry Antonio Pedroza, a union delegate, Mr José Antonio Tovar, Mr Juan Ramón Aparicio, Mr Jafet Enrique Castillo Suárez, Mr Roy Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado) of the enterprise Petróleos de Venezuela SA (PDVSA) Gas Comunal for committing the offence of boycotting, as provided for in section 139 of the Act for the Defence of Persons in Accessing Goods and Services, simply for staging protests to demand their labour rights. As a result, provisional measures were ordered against the workers, who had to appear before the Second Oversight Tribunal of the state of Miranda. In this regard, the CTV states that, according to the Unitary Federation of Venezuelan Petroleum, Gas, Derivatives and Similar Workers (FUTPV), the Office of the Attorney General is being used against workers as a means of criminalizing protest.
2. 1634. In this regard, the CTV adds that criminalization of protests has also occurred at various enterprises and legal proceedings have been initiated at the state holding PDVSA (affecting 27 workers) and the “Alfredo Maneiro” Orinoco steelworks (affecting 25 workers), at the gas enterprise PetroPiar and the El Palito refinery (at the latter, 600 workers decided to stop work because of failure to abide by commitments set out in the collective agreement, which resulted in the dismissal of ten union delegates) and Gas Comunal. Legal proceedings are currently before the courts in respect of 91 workers, mostly union officials. The CTV also states that around 110 workers have been taken to court for labour protests, which criminalizes the right to strike and the right to collective bargaining. According to the complainant, the security forces have been ordered to obstruct and suppress any protests.
3. 1635. The complainant also alleges the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and of two trade union delegates in the Los Anaucos district in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran).
4. 1636. Furthermore, the union alleges that the construction sector has seen contract killings of workers and union officials (more than 200 victims among workers and officials) in an atmosphere of complete impunity.
5. 1637. Lastly, the complainant mentions persistent refusal by the public authorities to bargain collectively in the health, oil, electricity and national university sectors, among others.

B. The Government’s reply

1. 1638. In its communications of 20 October 2009 and 8 and 9 March 2010, the Government states, with regard to the charges brought against six workers at PDVSA for alleged boycotting, that, on 12 June 2009, a demonstration was held by a group of workers of the enterprise PDVSA Gas which paralysed the plant’s gas canister filling activities, affecting the sale of a commodity of prime necessity for the population. As a result, the following were arrested: Mr Larry Antonio Pedroza, Mr José Antonio Tovar, Mr Juan Ramón Aparicio Martínez, Mr Jaffet Enrique Castillo Suárez, Mr Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado. These State enterprise workers appeared at a preliminary hearing before the Second Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the state of Miranda, on 13 June 2009. At the preliminary hearing (under flagrante delicto procedures) of the above individuals, the 16th Prosecutor of the Office of the Public Prosecutor qualified the events as a boycott, as provided for and penalized by section 139 of the Act for the Defence of Persons in Accessing Goods and Services (which does not apply to peaceful demonstrations):
   • Anyone who, jointly or individually, plans or carries out an action or is responsible for an omission that directly or indirectly impedes the production, manufacture, importation, warehousing, transport, distribution or sales of commodities classified as being of prime necessity shall be liable to a prison term of between six (6) and ten (10) years.
2. 1639. The Government states that the prosecutor also requested that the proceedings continue in accordance with ordinary procedures, and that preventive detention be ordered. The preliminary hearing before the Second Court of First Instance of the Criminal Judicial Circuit of the State of Miranda was scheduled on 23 March 2010. With reference to the accusation by the FUTPV concerning the national Government’s use of the Office of the Attorney General to act against workers who have staged protests, the Government clarifies that the organization of the Venezuelan State into five branches of authority and the autonomous and interdependent functioning of each of them, together with the fact that the Office of the Attorney General is part of the civic authority, means that there are no mechanisms authorizing or endorsing Government interference in actions that other state authorities may choose to carry out. The Government underlines the fact that the actions of the Venezuelan State in relation to the acts committed by the workers in question were undertaken in strict compliance with current legislation and with respect for the workers’ human rights, bearing in mind at the same time that the measures taken were appropriate to the nature of the events that took place, which went beyond a simple protest to demand labour rights, as the CTV presents them. The Government adds that the Act for the Defence of Persons in Accessing Goods and Services was published in the Official Bulletin of the Bolivarian Republic of Venezuela No. 39,165 of 24 April 2009. It seeks to defend, protect and safeguard the individual and collective rights and interests of people in accessing goods and services for the purpose of meeting their needs and securing social peace, justice and the right to life and health of the population.
3. 1640. With regard to the alleged criminalization of protests staged by workers at PDVSA and the “Alfredo Maneiro” Orinoco steelworks, and to the legal proceedings brought against workers at the state holding company PDVSA, the Government states that the Office of the Public Prosecutor, as the competent body to examine this type of accusation, has received no complaints and, consequently, has not begun any investigations relating to the alleged criminalization of protests held by workers at PDVSA and the “Alfredo Maneiro” Orinoco steelworks. On the contrary, the national Government, through the Office of the Public Prosecutor, has intervened in various labour disputes that have arisen at the headquarters of PDVSA and its subsidiary enterprises located in five states across the country, assisting in resolving them, through mediation, without hearing of the practice of detention in any of the disputes, nor of criminal proceedings being brought against workers, on the understanding that in these cases the demonstrations did not lead to the commission of offences under Venezuelan legislation.
4. 1641. Concerning the allegations concerning the accusation that 110 workers have been brought before the national courts for claiming their labour rights, which criminalizes the right to strike and the right to collective bargaining, the Venezuelan Government requires more precise information on either the workers allegedly involved or the courts examining the proceedings in order to be able to respond properly on this issue.
5. 1642. With respect to the allegations concerning failure by a contracting enterprise of PDVSA at the El Palito refinery to comply with a collective agreement, the Government states that, as the failure mentioned by the CTV was on the part of a contractor providing services to the state enterprise PDVSA at the El Palito refinery, it is consequently not a matter of any action or omission by the Venezuelan State that adversely affects the rights of these workers. However, in the event of failure to guarantee their rights and comply with labour standards, the workers may complain to the competent authority, in this case the labour inspectorate, and initiate the proceedings set out in the Organic Labour Act, specifically with reference to submitting petitions, a procedure developed for taking action on working conditions, negotiating a collective agreement or ensuring that commitments made are fulfilled (sections 475–489 of the Organic Labour Act).
6. 1643. Relating to the allegations concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in the town of El Tigre, Anzoátegui state, the Government states that the Office of the 42nd Prosecutor of the Office of the Public Prosecutor (a national body with full competence), located in the city of Puerto la Cruz, Anzoátegui state, is undertaking the investigation into this case, and is currently awaiting the results of various requests made to, and actions to be taken by, the Scientific, Criminal and Criminological Investigation Force, and that it will keep the Committee informed of progress and results in the case. As regards the allegations concerning crimes against union officials in the Los Anaucos district of Miranda state, the Government reports that these events were being investigated by the Office of the Ninth Prosecutor of the Office of the Public Prosecutor in the Los Anaucos district of Miranda state, which has instructed the Scientific, Criminal and Criminological Investigation Force to take all useful and necessary steps to establish the facts and identify the circumstances and perpetrators involved. The Government adds that the Office of the Public Prosecutor requested on 25 November 2009 the closing of the case due to the decease of the accused persons, Mr Pedro Guillermo Rondón and Mr Wilfredo Rafael Hernández Avilez, in conformity with section 318(3) and in line with section 48(1) of the Organic Code of Penal Proceedings, for reasons of termination of criminal proceedings.
7. 1644. In its communications dated 8 and 9 March 2010, the Government indicates that, as regards the collective agreement for the electricity sector, the Federation of Workers in the Electric Industry (FETRAELEC) has negotiated a collective agreement with the National Electric Corporation (CORPOELEC), which was endorsed on 3 February 2010, providing protection to 33,000 workers in that sector. Concerning the collective agreement of the Central University of Venezuela, the Labour Accord for the employees and workers in superior education was signed on 28 April 2009 between the Union Federation of University Workers of Venezuela (FETRAUVE) and the National Federation of University Worker of Venezuela (FENASTRAUV), on the one hand, and the People’s Ministry for Superior Education, on the other hand, providing protection to more than 45,000 employees and over 20,000 workers in that sector. With respect to the collective agreement for the petrol sector, a collective agreement was signed on 2 February 2010 between the United Federation of Gas, Oil, Derivatives and Annexes of Venezuela (FUTPV) and PDVSA Gas SA and PDVSA Petrol SA, and deposited with the Directorate of the National Inspectorate for the Public Sector of the People’s Ministry of Labour and Social Security. The collective agreement provides protection to over 47,000 workers in the sector. In relation to the Labour Accord for the health sector, the National Federation of Regional, Sectoral and Related Unions of Workers in the Health Sector (FENASITRASALUD) has negotiated and deposited with the Directorate of the National Inspectorate for the Public Sector of the People’s Ministry of Labour and Social Security the Labour Accord for Employees and Workers in the Health Sector. In this regard, the national executive authority is currently waiting for the executive committee of the FENASITRASALUD recovers its legitimacy to be able to proceed with the endorsement of the aforementioned Labour Accord, which contains the most favourable economic and social benefits established in previous collective agreements for workers and employees of the health sector.

C. The Committee’s conclusions

1. 1645. The Committee notes that, in its allegations, the CTV alleges: (1) the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and of two trade union delegates in the Los Anaucos district in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran); (2) the contract killings of more than 200 workers and union officials in the construction sector; (3) that the Office of the Attorney General has brought charges of boycotting against six workers (Mr Larry Antonio Pedroza, a union delegate, Mr José Antonio Tovar, Mr Juan Ramón Aparicio, Mr Jafet Enrique Castillo Suárez, Mr Roy Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado) at PDVSA for staging protests to demand their labour rights; (4) the criminalization of protests, and initiation of legal proceedings at various enterprises and dismissal of union officials as a result of those protests; and (5) persistent refusal by the public authorities to bargain collectively in the health, oil, electricity and national university sectors, among others.
2. 1646. With regard to the allegations concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and of two trade union delegates in the Los Anaucos area in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran), the Committee notes from the Government’s report that: (1) investigations into the events have been pursued by the Office of the 42nd Prosecutor of the Office of the Public Prosecutor (a national body with full competence), of Anzoátegui state, and the Office of the Ninth Prosecutor of the Office of the Public Prosecutor in the Los Anaucos district of Miranda state, respectively; and (2) the Office of the Public Prosecutor requested on 25 November 2009 the closing of the case due to the decease of the accused persons, Mr Pedro Guillermo Rondón and Mr Wilfredo Rafael Hernández Avilez, in conformity with section 318(3) and in line with section 48(1) of the Organic Code of Penal Proceedings, for reasons of termination of criminal proceedings. The Committee deeply regrets the murders and recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 4]. The Committee requests the Government to explain the reasons why the criminal proceedings have been terminated, and expects that new investigations will be initiated and will yield results in the near future and will enable the perpetrators to be identified and punished. The Committee requests the Government to keep it informed of the final outcomes of the investigations.
3. 1647. Concerning the allegations in relation to the contract killings of more than 200 workers and union officials in the construction sector, the Committee requests the trade union to provide the Government without delay with a list of these murders and the circumstances involved so that the Government can undertake the appropriate investigations without delay. The Committee requests the Government to keep it informed in this regard.
4. 1648. In general, the Committee must express its grave concern at the serious allegations of murders of workers and union officials, and, in this regard, it urges the Government to act diligently and swiftly to resolve these cases fully.
5. 1649. As regards the allegations concerning the Office of the Attorney General’s filing of criminal charges for the offence of boycotting and the subsequent detention of six workers of the PDVSA enterprise because, during a protest to demand their labour rights, they paralysed the enterprise’s activities (according to the FUTPV, the Office of the Attorney General is being used by the Government), the Committee notes the Government’s statement that, on 12 June 2009, a group of workers, as part of a demonstration, paralysed the plant’s gas canister filling activities, affecting the sale of a commodity of prime necessity, for which they were arrested. On 13 June 2009, the Second Court of First Instance of the Criminal Judicial Circuit of the state of Miranda summoned them to appear at a hearing, during which the 16th Prosecutor qualified the events as a boycott under section 139 of the Act for the Defence of Persons in Accessing Goods and Services, which states: “Anyone who, jointly or individually, plans or carries out an action or is responsible for an omission that directly or indirectly impedes the production, manufacture, importation, warehousing, transport, distribution or sales of commodities classified as being of prime necessity shall be liable to a prison term of between six and ten years.” The Committee also notes the Government’s statement that the Venezuelan State is organized into five branches of authority that function autonomously and interdependently and that there are no mechanisms authorizing interference by the Government in the other branches of state authority. It further notes the Government’s indication that section 139 of the aforementioned Act does not apply to the right to peaceful assembly, and that the judicial authority has scheduled the preliminary hearing on 23 March 2010.
6. 1650. In this regard, the Committee underlines the fact that the activity of filling and selling gas canisters does not constitute an essential service in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), where the exercise of the right to strike or the paralysis of activities can be prohibited or restricted. The Committee also considers that the peaceful exercise of trade union rights should not be the subject of criminal proceedings or result in the detention of the union officials who have organized them, on charges of boycotting, as in the present case, by virtue of the application of section 139 of the Act for the Defence of Persons in Accessing Goods and Services. This being the case, the Committee requests the Government to take the necessary measures to discontinue the criminal proceedings brought against the six union officials at PDVSA and to ensure their release without delay. The Committee also requests the Government to take the necessary steps to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services so that it does not apply to services which are not essential in the strict sense of the term, and so that in no event criminal sanctions be imposed in cases of peaceful strikes. The Committee requests the Government to keep it informed in this regard. The Committee draws this case to the attention of the Committee of Experts.
7. 1651. With respect to the allegations concerning the criminalization of protests and initiation of legal proceedings at various enterprises in the oil, gas and steel sectors, and the dismissal of union officials as a result of these protests, the Committee notes that, according to the CTV, judicial proceedings have been initiated against 27 workers at the state holding PDVSA and 25 workers at the “Alfredo Maneiro” Orinoco steelworks for staging protests in defence of their labour rights, and that ten union delegates were dismissed at the El Palito refinery after 600 workers decided to stop work as a result of failure to abide by commitments under the collective agreement; workers at the enterprises Gas PetroPiar and Gas Comunal have also been affected. The Committee also notes the CTV’s allegations that around 110 workers have been taken to court for claiming their labour rights. In this regard, the Committee notes that, according to the Government, the Office of the Public Prosecutor has received no complaints and has not carried out any investigations concerning these allegations; on the contrary, the Office of the Public Prosecutor has intervened in various labour disputes at PDVSA, assisting in resolving them through mediation, without learning of any detentions or criminal proceedings in any of the disputes. Given the contradiction between the allegations and the Government’s reply, the Committee requests the complainant to send the text of the accusations allegedly made against the union members in question.
8. 1652. Relating to the criminal proceedings against 110 workers for claiming their rights, the Committee notes the Government’s statement that more precise information should be provided. The Committee requests the complainant organization to supply supplementary information concerning these allegations, specifically, the names of those involved and the activities they are alleged to have undertaken, so that the Government can send its observations in this regard.
9. 1653. As regards the allegations concerning persistent refusal by the public authorities to bargain collectively in the health, oil, electricity and national university sectors, among others, the Committee notes that the Government reports the conclusion of collective agreements in these sectors (the allegations relating to the health sector are dealt with in Case No. 2422). The Committee invites the complainant organization to indicate whether the collective bargaining rights of its affiliates have been respected in the bargaining processes mentioned by the Government.

The Committee's recommendations

1. 1654. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expresses its grave concern at the serious allegations of murders of workers and union officials and urges the Government to act diligently and swiftly to resolve these cases fully.
   • (b) With regard to the allegations concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and of two trade union delegates in the Los Anaucos area in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran), the Committee requests the Government to explain the reasons for the termination of the criminal proceedings and expects that new investigations will be initiated and will yield results in the near future and will enable the perpetrators to be identified and punished. The Committee requests the Government to keep it informed in this regard.
   • (c) Concerning the allegations in relation to the contract killings of more than 200 workers and union officials in the construction sector, the Committee requests the trade union to provide the Government without delay with a list of these murders and the circumstances involved so that the Government can undertake the appropriate investigations without delay. The Committee requests the Government to keep it informed in this regard.
   • (d) As regards the allegations concerning the Office of the Attorney General’s preparation criminal charges against and detention of six workers at PDVSA because, during a protest in defence of their labour rights, they paralysed the enterprise’s activities, the Committee requests the Government to take the necessary measures to have the criminal proceedings brought against the six union officials at PDVSA dropped and to ensure their release without delay. The Committee also requests the Government to take the necessary steps to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services so that it does not apply to services which are not essential in the strict sense of the term and so that in no event may criminal sanctions be imposed in cases of peaceful strikes. The Committee requests the Government to keep it informed in this regard. The Committee draws this case to the attention of the Committee of Experts.
   • (e) Relating to the allegations concerning the criminalization of protests and the initiation of judicial proceedings at various enterprises in the oil, gas and steel sectors, and the dismissal of union officials as a result of these protests, the Committee requests the complainant to send the text of the accusations allegedly made against the union members in question.
   • (f) With regard to the criminal court proceedings against 110 workers for claiming their rights, the Committee requests the complainant organization to supply supplementary information concerning these allegations, specifically, the names of those involved and the activities they are alleged to have undertaken, so that the Government can send its observations in this regard.
   • (g) The Committee invites the complainant organization to indicate whether the collective bargaining rights of its affiliates have been respected in the bargaining processes mentioned by the Government.
   • (h) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.